How did a white man convince a jury to award him over $10M for race and gender discrimination?


In 2013, a healthcare provider hired a white man—let’s call him plaintiff—as its Senior Vice President of Marketing and Communications. And he crushed it, receiving strong performance reviews and gaining national recognition for himself and the marketing program he developed.

And then, seemingly out of nowhere, he was fired.

As the Fourth Circuit Court of Appeals describes it, the decision was as much a shock to the plaintiff as it was to his colleagues, including members of management. He had no record of any documented criticism or reasons for his termination. Thus, the plaintiff divined that his race and gender motivated the termination decision.

The case went to trial, where the jury heard evidence about the context surrounding his termination, namely, the defendant’s diversity and inclusion initiative. There was evidence the defendant sought to achieve this goal by, among other things, benchmarking its then-current D&I levels and developing and employing D&I metrics to close any diversity gaps.

Indeed, the jury heard about how the defendant saw a dramatic increase in female leaders from the prior year (when it fired the plaintiff). The numbers also reflected a decrease in white workers and leaders and an increase in black workers and leaders over the life of the D&I Plan. The defendant also adopted a long-term financial incentive plan that tied executive bonuses to incentivize more diverse hires.

So, why did the defendant fire the plaintiff? At the termination meeting, the company stated it was “going in a different direction.” The plaintiff’s boss, a black man, testified that the plaintiff lacked “engagement.” However, the jury saw evidence that the plaintiff had excellent engagement scores when fired—better than his boss’s.

The jury also heard evidence from a recruiter who testified that the plaintiff’s boss told him months later that he would hire the plaintiff again.

But what about the plaintiff’s replacements? One of the interim replacements, a black woman, was rated lower than him. The black woman who replaced him permanently was one of three finalists—all black women. All of this happened during Phase 2 of the D&I plan.

All told, even without direct evidence of discrimination, the jury concluded that the plaintiff’s race and gender motivated the defendant’s employment decision.

That’s not to say that all D&I programs are doomed.

As the Fourth Circuit, which knocked out the punitive damages portion of the judgment, noted, “To be clear, employers may, if they so choose, utilize D&I-type programs. What they cannot do is take adverse employment actions against employees based on their race or gender to implement such a program…[T]he evidence presented at trial in this case was more than sufficient for a reasonable jury to conclude that is precisely what [happened here].”

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